Rather than introducing legislation to amend doli incapax, the NSW government should consider addressing the “degree of misunderstanding” within the criminal justice system, the State Parole Authority chair and a former police commissioner have submitted.
Former Supreme Court judge and State Parole Authority chair Geoffrey Bellew SC, along with former NSW Police deputy commissioner Jeffrey Loy APM, have published their review into doli incapax, a law that presumes children aged between 10 and 14 lack the capacity to be criminally responsible due to their state of mind.
The term itself is “rebuttable” given children can be penalised if the prosecution proves beyond a reasonable doubt that the child understood their actions were “seriously, morally wrong”, they said.
Importantly, the review supported the current common law principle of doli incapax as expressed by the High Court in RP v The Queen.
In that decision, the High Court determined that it was the prosecution who bore the onus of proof to present evidence, beyond the circumstances of the offending, to rebut the presumption.
In its current form, Bellew and Loy said it is “generally consistent with law principles applicable to the mental element of any offence”. While establishing state of mind is challenging, they said it did not justify introducing different legislation for children.
“It also provides an important safeguard against the possibility of inappropriate findings of criminal responsibility when a child lacks that knowledge, and recognises the considerable vulnerability of children aged 10–13 years and the significant impact upon such children of a criminal conviction,” they said.
Bellew and Loy observed there to be a “degree of misunderstanding” from participants within the criminal justice system as to the proper application of aspects of the doli incapax test.
It is these challenges that should be addressed with legislation.
“That, in our view, is a more appropriate response than one which adopts a test which departs from the common law,” they said.
This legislation should also provide assistance and guidance to those in the criminal justice system by prescribing a “non-exhaustive list” of considerations that can be taken into account in determining whether the presumption has been rebutted.
“Such a step will, in our view, enhance the consistent application of the test, promote a better understanding of its operation, and clarify the misunderstandings which presently exist,” Bellew and Loy said.
NSW Bar Association president Dominic Toomey SC said doli incapax was an important safeguard that must be protected in the absence of criminal responsibility being raised to 14 years of age.
“Doli incapax recognises that, at a young age, the brains of children are still developing and that children lack the maturity required properly to appreciate the significance of their actions,” he said.
Toomey said the onus “should never be” on children to prove.
“The NSW Bar Association looks forward to the opportunity to assist the NSW government in its consideration of this careful and considered report,” Toomey added.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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